Housing Authority of City of Wilson v. Wooten, 243

• Decision Date: 15 June 1962
• Docket Number: No. 243,243
• Parties: HOUSING AUTHORITY OF the CITY OF WILSON v. W. L. WOOTEN and wife, Maude H. Wooten; O. Wayne Yelverton and wife, Vivian S. Yelverton; City of Wilson; Wilson County.
• Court: North Carolina Supreme Court

Page 101

126 S.E.2d 101

257 N.C. 358

HOUSING AUTHORITY OF the CITY OF WILSON v. W. L. WOOTEN and wife, Maude H. Wooten; O. Wayne Yelverton and wife, Vivian S. Yelverton; City of Wilson Wilson County.

No. 243

Supreme Court of North Carolina.

June 15, 1962

Finch, Narron, Holdford & Holdford, By Roy R. Holdford, Jr., Wilson, for respondents-appellants.

Lucas, Rand & Rose, By Naomi E. Morris, Wilson, for petitioner-appellee.

PARKER, Justice.

The basis of the Housing Authority's motion to strike Sections 1, 3, 6, 7, 8, 9, and 10 from respondents' further answer and defense contained in their amended answer is that the facts therein alleged constitute no legal defense to its special proceeding to condemn respondents' land. The stricken allegations are in substance a plea in bar that denies the Housing Authority's right to condemn their land, and which, if established, will destroy its right. Mercer v. Hilliard, 249 N.C. 725, 107 S.E.2d 554; In re Housing Authority of City of Salisbury, etc., 235 N.C. 463, 70 S.E.2d 500. In substance and in effect, but not in form, the Housing Authority's motion to strike is a demurrer to what is in substance a plea in bar. Such being the case, Judge Copeland's order affirming the clerk's order allowing the Housing Authority's motion to strike in its entirety affects a substantial right of respondents, and they may appeal therefrom, and Rule 4(a), Rules of Practice in the Supreme Court, 254 N.C. 783, 785, is not applicable. G.S. § 1-277; Mercer v. Hilliard, supra.

Respondents state in their brief: 'Respondents contend that by their further answer and defense they have alleged facts which show the Housing Authority of the City of Wilson has acted in bad faith in the selection of a site or sites for its housing projects.'

This Court said in In re Housing Authority of City of Charlotte, 233 N.C. 649, 660, 65 S.E.2d 761, 769:

'In the selection of a location for a housing project as authorized under the Housing Authorities Law, the project may be built either in a slum area which has been cleared, or upon other suitable site. The housing authority is given wide discretion in the selection and location of a site for such project. Housing Authority [of City of Dallas] v. Higginbotham, 135 Tex. 158, 143 S. W.2d 79, 130 A.L.R. 1053; Riggin v. Dockweiler, 15 Cal.2d 651, 104 P.2d 367; Chapman v. Huntington, W. Va., Housing Authority, 121 W.Va. 319, 3 S.E.2d 502; Stockus v. Boston Housing Authority, 304 Mass. 507, 24 N.E.2d 333; Housing Authority of the City of Oakland v. Forbes, 51 Cal.App.2d 1, 124 P.2d 194. And the fact that a few isolated properties in an area may be taken and dismantled which are above the standard of slum properties, or that some few desirable homes will be taken, will not affect the public character of the condemnation proceeding. Blakemore v. Cincinnati Metropolitan Housing Authority, 74 Ohio App. 5, 57 N.E. 2d 397; In re Edward J. Jeffries Home Housing Project of Detroit, 306 Mich. 638, 11 N.W.2d 272.'

An examination of the cases cited by this Court shows that they support this Court's statement of law. To the same effect are the following cases: David Jeffrey Co. v. City of Milwaukee, 267 Wis. 559, 66 N.W. 2d 362 (1954); State ex rel. Bruestle v. Rich, 159 Ohio St. 13, 110 N.E.2d 778 (1953), which cites our case of In re Housing Authority of City of Charlotte, supra; Ferch v. Housing Authority of Cass County, 79 N.D. 764, 59 N.W.2d 849 (1953); Scheuer v. Housing Authority of City of Cartersville, 214 Ga. 842, 108 S.E.2d 264 (1959); Carroll v. City of Camden, 34 N.J. 575, 170 A.2d 417 (1961).

In Ferch v. Housing Authority of Cass County, supra, the Supreme Court of North Dakota said:

'The plaintiff complains that the condemnation of land for new housing outside the slum area as in the instant case could not be held to be for a public purpose and therefore violates said sections of the state and federal Constitutions. If that were so, the purpose of the Act would in many instances be thwarted. There may be many reasons why the new project should not be built in the slum area, such as the topography, drainage and lack of space. In the case of Chapman v. Huntington Housing Authority, 121 W.Va. 319, 3 S.E.2d 502, 509, the court says:

"The projects may be built in any area within the exercise of sound discretion of the federal and state authorities and the council of the City of Huntington, whether slum or not slum. They are simply low-cost-housing projects, incidental to slum clearance. In some cities it is quite conceivable that slums exist in low-water areas. Equally, it is quite inconceivable that public moneys in large amounts should be expended to build modern dwelling units where they will be subject to and endangered by rising waters.'

'In Riggin v. Dockweiler, 15 Cal.2d 651, 104 P.2d 367, the court said:

"In working out the problem of low-cost housing, it may appear that the clearance of a slum area is desirable because the dwellings in use are insanitary, or present fire hazards or are maintained under such conditions that their removal would be in the interest of the public welfare. Also, the location may be an undesirable one for dwellings. Where such circumstances exist, it would be folly to require the new buildings to be constructed at the old location, and compel the new units to be crowded into the space taken up by those cleared away. Such an interpretation of the housing act would thwart the very purposes for which it was passed and effectively block slum clearance in districts where the problem is most acute.' See also Thomas v. Housing & Redevelopment Authority, 234 Minn. 221, 48 N.W.2d 175, 188; Keyes v. United States, 73 App.D.C. 273, 119 F.2d 444, Id., 314 U.S. 636, 62 S.Ct. 70, 86 L.Ed. 510.'

In In re Housing Authority of City of Sailsbury, etc., supra, this Court said:

'In determining what property is necessary for a public housing site a, broad discretion is vested by statute in housing authority commissioners, to whom the power o eminent domain is delegated. G.S. § 157-11; G.S. § 157-50; G.S. § 40-37.

'Indeed, so extensive is this discretionary power of housing commissioners that ordinarily the selection of a project site may become an issuable question, determinable by the court, on nothing short of allegations charging arbitrary or capricious conduct amounting to abuse of discretion. See Yadkin River Power Co. v. Wissler, 160 N.C. 269, 76 S.E. 267, 43 L.R.A., N.S., 483; Pue v. Hood, Com'r. of Banks, 222 N.C. 310, page 315, 22 S.E. 2d 896. However, allegations charging malice, fraud, or bad faith in the selection of a housing project site are not essential to confer the right of judicial review. It suffices to allege and show abuse of discretion. The distinction here drawn is not at variance with the decision reached in Re Housing Authority of City of Charlotte, 233 N.C. 649, headnote 2, 65 S.E.2d 761, headnote 4.'

This is the question for decision: Admitting, for the purpose of passing on the Housing Authority's motion to strike sections 1, 3, 6, 7, 8, 9, and 10 from respondents' further answer and defense contained in their amended answer (which is in substance and effect a demurrer to what is in...